The reason their attempts fall short isn’t because the attorneys don’t know what topics to tackle, and it’s not because they don’t know how to frame their questions.  The reason they fall short is because most trial lawyers are afraid to practice like they’ll play.

One of my favorite maxims from sports is “Practice like you play.”  From little league to the professional leagues, coaches at every level of play invoke this phrase to push their players, because they know that a player’s performance during practice determines his level of success on the field.  If a player can perfectly execute drills during the third hour of practice, when his body is weary and ready to give out, then you can be assured he’ll be able to perfectly execute those same skills during the final moments of the game. 

One of the worst things coaches can do is to ease up on their players when they get tired during practice.  If he lets them take it easy or run at 3/4 speed, that lack of discipline will come back to haunt the team during the next game.  By pushing his players hard and expecting them to give 100% during practice, the coach ensures that his players develop strong habits that will carry over to the field and help them win games.  The only players who prefer “easy” coaches are the players who don’t care about winning.  Winners want the coach who will push them to their limits during practice, so that the gameday adversity seems easy by comparison.

The maxim of “Practice like you play” is just as true in the courtroom as it is on the football field.  That means you need to prepare your client for the type of cross-examination that he should expect in the courtroom.  That means you don’t cross-examine him at 1/2 strength, or 3/4 strength, or even 7/8 strength.  You need to rev it up to 100% and attack your client with the same intensity (or greater) that he’ll confront in the courtroom. 

Unfortunately, many trial lawyers aren’t willing to do this.  They’ll tone down their attacks when preparing their clients for cross-examination, because they want to be “nice” to their clients.  After all, the client is the guy who pays the bills, right?  You may respect your client, you may like him, you might even be friends with him…  but not during these preparations.  Put aside your natural inclination to be nice to the people you like, because you’ll be doing your client a terrible disservice when preparing him for cross-examination if you’re “nice” to him.

The harshest cross-examination your client should ever endure is the one that will take place in your office before he testifies, because that will make the cross-examination he faces on the witness stand seem easy by comparison.  You don’t want your client to step down from the witness stand and think, “Holy crap, I wasn’t prepared for that!”  You want him to tell you, “I thought that guy was going to be a lot worse than he was.  His cross-examination wasn’t nearly as bad as I thought it would be!”

As coach Paul “Bear” Bryant said, “It’s not the will to win, but the will to prepare to win that makes the difference.”  Remind your client about the purpose of the preparation session: you’re preparing to win.  If you and your client are willing to prepare to win, your client’s cross-examination session needs to be rough.  Make him as uncomfortable as possible.  Cross-examine him as harshly as your opponent will.  Even harsher.  Unload on him with both barrels, giving him the most rigorous cross-examination you can muster.

During this preparation session, he may hate you for it.  He may curse at you or threaten to fire you.  “Why are you doing this,” he’ll ask, “do you hate me or something?”

No, of course you don’t.  Just like the demanding coach who pushes his players harder than they’ve ever been pushed before, or the drill sergeant who pushes his recruits to their breaking points, you’re not doing this because you hate him.  The reason you’re pushing them so hard is because you love him, and you know that if he doesn’t practice like he intends to play, he’s going to get killed when he steps onto the field of battle.

Cross-examine your client as vigorously as you can, and “practice like you play.”  In the short run, he may hate you for it, but eventually, he’ll be glad you pushed him as hard as you did.  (He just may not get around to saying “Thank you” until after you’ve won the case.)

• State and federal laws
• Contents of the Federal Register
• Laws of foreign nations
• Acts of Congress
• Court records
• Rules of court
• Municipal and county charters
• Ordinances and resolutions of municipalities
• Administrative agency rules
• Items under official governmental seal
• Facts that are not subject to dispute

The last item on the list is also the most interesting: Facts that are not subject to dispute.  There are two different sources of indisputable facts.  The first source is facts which aren’t subject to dispute because they’re generally known within the territorial jurisdiction of the court.  For example, here in Orange County, Florida, everyone knows that Central Blvd. and Orange Ave. intersect in the middle of downtown.  You wouldn’t need a geography expert to establish that fact — everyone in the jurisdiction is expected to know it, so you can ask the court to take judicial notice of the fact.

The second source of indisputable facts are those which are capable of accurate and ready determination by resorting to sources whose accuracy cannot be questioned.  For example, if you were trying to establish which day of the week August 3, 2007 fell on, your judge could take judicial notice that it fell on a Friday.  Why?  Because the fact isn’t subject to dispute — anyone with access to a calendar can quickly and easily determine its veracity.

The great benefit of these forms of self-authenticating evidence is that you can introduce the items into evidence without the time and expense of calling a live witness to the stand.  For example, I recently tried a case where my opponent was seeking to introduce a medical document.  He didn’t use an expert witness or records custodian to admit the document.  Instead, he introduced it using our state’s version of Federal Rule of Evidence 803(6).  In case you’re unfamiliar with it, FRE 803(6) establishes another form of evidence that is (basically) self-authenticating: Records of Regularly Conducted Activity.  When the evidence code was amended in 2000, they eased the business records hearsay exception by no longer requiring live testimony from a business records custodian.  Instead, they now allow you to simply certify that the records are kept in the normal course of business.

Using this evidentiary rule, my opponent didn’t need to call a single witness to the stand.  Instead, he simply handed the document and the certification to the judge, then asked to have them admitted into evidence.  That was it!  Without asking a single question, he satisfied the entire evidentiary predicate for admitting the document. 

That was when I noticed the problem with “self-authenticating” documents. 

After the document was marked into evidence, the attorney asked for permission to publish it to the jury.  The judge granted permission, and the document was handed to the first juror.  The juror received the document and quietly stared at it.  If the document could have spoken, it would have said, “I’m important, because I show that the witness had alcohol in his bloodstream when he was admitted to the hospital.  In fact, the witness had an alcohol level of .089, which is more than the legal limit to drive a car.  You might want to question whether or not this witness knowingly and voluntarily gave up his right to remain silent before he gave that statement to the police…”

That’s what the document would have said, if it could speak.  But it couldn’t.  It just sat there while the juror stared at it.  You could tell from the look on his face that he wasn’t sure what he was supposed to be looking at.  He didn’t have any medical training, so medical codes and terms like “mg/dl” probably didn’t mean anything to him.  He was just as confused as he would have been if the document had been written in Sanskrit.  He stared at it for a moment longer, then passed it to the next juror.  What might have been an important element in the case was completely overlooked, because the document didn’t get a chance to speak.

Many attorneys make the same mistake.  They believe that if a document is self-authenticating, it should be able to “speak for itself.”  But nothing could be further from the truth.  Documents don’t speak.  They don’t explain themselves.  If a juror doesn’t know how to read them, or if they don’t know which parts of the document are important, the document just sits there and silently stares back at them.

Don’t make the same mistake.  As the trial lawyer, it’s your responsibility to ensure that the jury understands your evidence.  Even when your evidence is supposed to “speak for itself,” you still must give it a voice.  The most effective way you can help your self-authenticating evidence “speak” is by strategically publishing the exhibits to the jury.  If my opponent had waited until closing argument to publish his exhibit, he could have shown the jurors which parts of the document to examine closely, and told them why it was important.  Instead, they examined the document in a vacuum, and had no idea why it was important or why they were looking at it.  The importance of the document was lost, never to be regained.

Don’t fall into the trap of automatically publishing your exhibits immediately after they’ve been admitted into evidence.  Wait until the most opportune time to publish them.  This may mean that you don’t publish your self-authenticating documents until much later in your case, when a witness can use the document to explain or enhance his testimony.  It may even mean that you wait all the way until closing argument (when you can explain the document or highlight the important elements) before publishing the documents to the jury.

Self-authenticating documents don’t speak for themselves.  It’s up to you to give them a voice.  Find a way to work the document into another witness’s testimony, or hold off on publishing the document until closing argument.  Regardless of which method you use, you’ll breathe more life into your evidence, making it more persuasive than it ever could be on its own.

Obviously, safety is a huge concern at every gun range.  First, they had me sign a waiver that basically said, “We aren’t liable for ANYTHING.  Period.”  After that, they ran me through the basics of loading, holding, and firing a handgun.  Finally, they had me read through the list of range rules:

The purpose of all these rules is to keep everyone safe.  But interestingly, when you study the list, you’ll discover that there’s one rule that’s probably more important than all of the others.  Which rule is it?  “Rule #4: Always point your firearm in a safe direction.”  Following this one rule eliminates the majority of all range accidents.  In fact, even if shooters ignored the other rules, as long as no one ever pointed a gun at anything they didn’t intend to shoot, everyone’s shooting experience would probably be a safe one.

But safety isn’t just an issue on the gun range.  As a trial lawyer, you need to be concerned with your safety during trial.  One of the most dangerous areas of trial seems to be the area of cross-examination.  As the old legal maxim says, “More cross-examinations are suicidal than homicidal.”  Luckily, someone developed a set of rules to keep you safe during this dangerous activity.  These rules were first presented at the American Bar Association’s 1975 annual meeting by Prof. Irving Younger, who titled them “The 10 Commandments of Cross-Examination:”

Much like the rules of the gun range, however, one of these commandments is far more important than all of the others.  If you follow this single commandment, you will control witnesses, streamline your cross, and avoid the majority of pitfalls most lawyers encounter during cross-examination.  Which one is it?  “Commandment #3: Use Only Leading Questions.”

Notice that it doesn’t say, “Use Only Leading Questions (Most of the Time).”  It doesn’t say, “Use Only Leading Questions (Unless You Don’t Feel Like It).”  It doesn’t even say, “Use Only Leading Questions (Except When You Think the Witness Can’t Give You a Bad Answer).”

No, the commandment is simple and direct: “Use ONLY Leading Questions.”

In the past few weeks, I’ve had the opportunity to watch several attorneys cross-examine witnesses.  Overall, most of their cross-examinations were effective, but there were still a few times when the witness, rather than the lawyer, seemed to be in control of the examination.  Here are a few of the problems I saw:

• Witnesses getting out of control
• Witnesses volunteering damaging information that the jury shouldn’t hear
• Lawyers arguing with witnesses

Without fail, every time that there was a problem, it was after the lawyer asked a non-leading question.  Every time that the lawyer stopped asking leading questions, the witness attempted to exert control and re-tell their story.

Why would you ever abandon leading questions?  Leading questions are one of the few tools that you’re given to level the playing field during cross-examination, so why wouldn’t you want to use them?  Whenever you ask open ended questions, you give the witness the opportunity to re-tell their story.  Let’s face it — if you really liked their story, you would have called them during your case-in-chief.  You don’t want to hear their story again during cross-examination…  You want to tell your client’s story.

To make sure that happens, every question that you ask during cross-examination must be a leading question.  To ensure that your questions are all leading questions, you must eliminate these deadly words from your vocabulary during cross:

Who?
What?
Where?
When?
Did…
How?
Why?
Explain…
Tell us…

These are wonderful words when you’re conducting a direct examination, but they can wreak havoc during your cross.  Whenever you ask a question that starts with one of these words, you give the witness permission to explain their story.  The worst words in the entire list are the last two: “Why?” and “Explain…”  When you start your question with either of these words, you give the witness carte blanche to explain why they did what they did.  (Trust me, you won’t like the answer.)  Just like at the shooting range, if you want to be safe, you need to follow the safety rules without exception.  Make sure that every question you ask is a leading question, and you’ll ensure that your time on the firing line is a safe and enjoyable experience.

In your last case, how many times did you visit the “scene of the crime” before trial began?  Once?  Twice?  Half a dozen times?

Unfortunately, if you’re like many lawyers, the answer is probably “none.”  Oh sure, you looked at photos, examined a map of the area, and listened intently as your witnesses described the scene, but when it comes right down to it, you never actually left the comfort of your office to go visit the scene.

For as long as I’ve been a lawyer, I’ve always heard how important it was to visit the scene.  Law school buddies said I should visit the scene, but I didn’t listen.  Trial partners told me that I should visit the scene, but I didn’t listen.  Judges and senior attorneys said, “Go!”, but I didn’t listen. 

To be candid, I rarely went to the scene because I always came up with an excuse for why I didn’t need to go:

(Do any of my excuses sound familiar?)

Then one day, I found myself listening to someone whose advice I really trusted.  This man’s worldly wisdom was more valuable than anything I’d ever learned in law school.  He wasn’t a lawyer, but lawyers listened to him.  In fact, his influence extended far beyond the courthouse walls.  I have it on good authority that countless legislators, law school professors, judges (even a few Supreme Court Justices) still listen to everything he says, and will go out of their way to see him if he visits their town. 

So who was this sage?  Perhaps you’ve heard of him: His name is Jimmy Buffett, and the advice he extolled came from the song “Mañana” on his Son of a Son of a Sailor album.  Here’s what he told me: 

“Don’t try to describe the ocean if you’ve never seen it —
Don’t ever forget that you just may wind up being wrong…”

Buffett has given us some great advice over the years (“I took off for a weekend last month, just to try and recall the whole year,” “Come Monday, it’ll be all right,” “Barmaid, bring a pitcher, another round of brew…”) but this is probably the most useful advice he’s ever given to aid your pre-trial preparations.  And if Jimmy Buffett’s recommendation isn’t enough to get you out of the office, here are three more reasons why you’ll want to visit the scene of the crime:

1. You’ll present better opening statements.  If I asked you to tell me what one of the courtrooms in your courthouse looks like, you could probably describe it in great detail, couldn’t you?  That’s because, in your mind’s eye, you can “see” where the jury box is located, the height of the judge’s bench, and the distance between the witness box and the attorney’s tables.  When I ask you to describe the courtroom, you simply access your visual memory and tell me what you “see.”

In much the same way, going to the scene helps you “see” how the events unfolded, which lets you bring the action to life during your opening statement.  Instead of cobbling together random details from witness statements and various reports, you simply transfer the images from your mind’s eye into your jurors’ minds.

2. You’ll extract more detail during direct examination.  Possibly the greatest benefit of visiting the scene is that you’ll start pulling far more detail out of your witnesses during direct examination.  For example, compare these two direct examinations from Driving Under the Influence (DUI) cases.  The first is by a prosecutor who only read the police reports and talked with his witnesses:  

That’s not too bad, right?  You know that the driver didn’t stop his car, even though the police officer’s lights were flashing and his sirens were wailing.  You also know that he passed by several other safe places to stop his car.  At this point, you might even be thinking that the reason why he didn’t stop the car was alcohol-related.  But look at how much better the direct examination becomes if the prosecutor actually has first hand knowledge of how the scene looks:

By visiting the scene, you can ask more intelligent questions and elicit more details from your witnesses.  This lets you fill in all of the “holes” in their testimony and present a complete picture for the jurors.

3. Your cross-examination will be more lethal.  Your witnesses and investigators don’t know as much about the case as you do, so they can easily overlook cross-examination insights which would seem obvious to you.  When you visit the scene (rather than relying on second hand information) you will uncover clues that others wouldn’t even recognize as being important.  Those clues may be the winning edge you need to poke holes in opposing witness’s testimony.

• “You said you were sitting in the Starbucks at 4:25 PM, looked out the window, and saw my client, Money Richpockets, run a red light and hit your best friend, Harvey Deadbeat, isn’t that right?”
• “That day was a clear day, wasn’t it?”
• “Not a cloud in the sky, right?”
• “The sun was shining brightly from the west.”
• “Earlier, you said that you had a clear view of the crash, because the sun was directly behind you as you looked out the window, right?”
• “The Morgan St. glass shop is directly across the street from the Starbucks, isn’t it?”
• “The glass shop has a 20′ x 10′ mirror in the front of the store, doesn’t it?”
• “And between 3:50 PM and 4:45 PM, the sun shines directly onto that mirrored window, doesn’t it?”
• “In fact, the light reflects directly into the Starbucks, blinding the barristas.”
• “They close the front blinds as soon as the light hits the espresso machines, so that no one in the store gets blinded, don’t they?”

Visiting the scene of the crime can make the difference between whether the jury “sees” what happened to your client or not.  Your pre-trial preparation won’t be complete until you’ve visited the scene of the crime, so block off some time in your calendar and go.  You’ll be glad you did, and so will your client!

1. Decide if your co-counsel will be an “active second” or a “silent second.” Active second chair attorneys question witnesses, cross-examine opposing witnesses, and may even present the opening statement or closing argument.  Silent second chair attorneys take notes, prepare exhibits, and wrangle witnesses outside of the courtroom.  If you and your second haven’t agreed upon what role they’re supposed to play before trial, your co-counsel will quickly become frustrated as the trial proceeds.

2. The first mate never publicly disagrees with the captain. You must present a unified front.  Jurors can see everything in the courtroom, so if there’s any disagreement between you and your second, at least one of the jurors will pick up on the disharmony.  When that happens, the jurors will start focusing on you, rather than your case.  Although you will ask for their opinions on case strategies or witness examination, your co-counsel needs to understand that your decisions will be the ultimate decisions in the case.  Any disagreements need to be voiced before trial, because once you step inside the courtroom, everyone on your team needs to be on the same page.

3. Only one lawyer may question a witness. A recent horror story I heard involved an experienced attorney and a less experienced second chair.  The lead defense attorney had fully prepared to cross-examine the prosecution’s star witness.  He was chomping at the bit, waiting for the opportunity to dissect this witness.  During direct examination, the witness mentioned something improper or irrelevant.  Before the lead defense attorney could say anything, his co-counsel leapt from his seat and objected.  The objection was sustained.  Unfortunately, since co-counsel had spoken during the witness’s testimony, the judge wouldn’t let any other lawyer speak during the witness’s testimony.  The second chair attorney was obligated to cross-examine the witness.  His cross-examination was a failure, and ultimately, his client was convicted.  The lesson?  Make sure you and your co-counsel agree upon who will be cross-examining each witness, or you could find yourself in a similar bind.

Even if you don’t want to have a second chair attorney with you for the entire trial, you should always have someone sit with you during the jury selection process.  Having someone else sit with you during jury selection frees you from your notes, allowing you to talk directly with the jurors.  More importantly, your second will pick up on interactions between the jurors that you may miss, such as when you’re talking with Juror #2 and don’t see Juror #22 on the other side of the room, who is vigorously shaking his head in disagreement.

Tempo.  It doesn’t just affect the mood of the music, it also affects the difficulty level of the musical performance.  The faster the tempo, the livelier the tune, and the greater the performance difficulty.  The slower the tempo, the more somber the tune, and (generally), the easier it is to play.

Tempo’s effects aren’t limited to music.  I was watching a University of Florida football game and the commentator commented (after all, that was his job) that the Gators had increased the tempo of the game and were throwing the other team off of their game plan.  Whenever you force someone to do something faster (ex. juggling, talking, typing) they’re going to make more errors.  The losing team was missing tackles, dropping catches, and throwing interceptions, because they couldn’t control the tempo of their game.

How about you?  Who’s controlling the tempo of your trial?  Most importantly, who’s controlling the tempo of your cross-examination?  Often, the tempo of your cross-examination will determine whether or not it succeeds.

To successfully cross-examine, you need to be “quick.”  Increasing the pace of your questioning allows you to control what story gets told during cross-examination.  If the witness is lying, he’ll need time to think of the lie.  The faster your questions pummel him, the less likely his chances of maintaining the lies.  Control the pace of your cross-examination and you won’t give the witness time to fabricate his responses.  Control the tempo, and you control the cross-examination.

An example of tempo’s power to control cross-examination was demonstrated in the pilot episode for the TV show Shark. In the scene, the celebrity defense attorney-turned-prosecutor Sebastian Stark (played by James Woods) is telling his protégés that they must make the defendant (a woman accused of killing the man she just slept with after discovering their lovemaking had been taped) lose her self-control on the witness stand:

If you enjoy watching James Woods act, you’ll enjoy what follows.  In the blink of an eye, his entire face, posture, and demeanor change.  In one instant, he’s jovial and joking.  In the next, he’s got on his cross-examination “game face” and launches into his attack:

The questions (“the notes”) aren’t what matters most.  It’s TV, so he’s not bound by the rules of evidence, and you wouldn’t (and probably shouldn’t) ask the majority of those questions.  What was fun to watch was the tempo of the questions.  It was relentless.  There was no room to let up.  If there were any silences during the exchange, it’s because they were planned by the writers.

Who’s controlling the pace of your cross-examinations?

As the examiner, you don’t have exclusive control over the tempo.  Your witness also has power to speed up or slow down the pace of the examination.  The witness can slow down the tempo by pausing before answering, adding innocuous comments to his answer, or asking you to repeat or restate your questions.

But as the examiner, you want to control the tempo.  You can make his pausing seem like he’s crafting his answer and isn’t being forthright.  You can craft your questions so that any answer besides “Yes” or “No” appears to be an attempt to avoid answering.  Finally, and perhaps most obvious, you can control the tempo by varying how quickly you ask your questions.

But how do you become “quick?”

Being quick starts before you even walk into the courtroom.  If you need to refer to notes or poke through boxes of stuff to impeach the witness, it’s impossible for you to be quick.  To be quick, you need to have a sharp memory, instant access to all of your impeachment material, and the ability to ask questions in a rapid-fire manner.  To do that, you’ll need to cram all of the information into your head and have it available for instant recall.

Don’t worry, you already know how to do this.

You thought that law school didn’t really prepare you to be a trial lawyer, but you’re wrong.  During exams, you had to cram an entire semester’s worth of information into your head, organize it, and then spit it out coherently and persuasively on the exam page.  Well, that’s perfect preparation for trial work.  When you prepare for cross-examination, you cram an incredible amount of information into your head.  Facts, figures, previous statements, lines and page numbers, motives to lie, biases, friendships, relationships, spatial comparisons, probabilities, timing, distances…  you cram it all inside your cranium.  Tomorrow, after the jury renders its verdict, you won’t need to keep this stuff in your head.  But for today, while you cross-examine the witness, you need to have
all of it available with instant recall.  When you have instant recall of the information, you can deliver your questions at a rapid fire pace and control the tempo of the cross-examination.

Remember, tempo is more than just a musical element.  Tempo affects your entire trial, but its effects will be most apparent during cross-examination.  Before you cross-examine your next witness, spend some time thinking about the tempo of your questioning.  A great cross-examination is more than just the “notes.”  Prepare your timing, practice, and your cross-examination composition will be a symphony masterpiece.

But… if you’re serious about becoming a successful trial lawyer, I don’t want you to miss out on this system because we ran out of inventory.  That’s why I’m making the program available to you in a digital format.  You’ll get the entire manual, with more than 600 pages of pure content and 500+ simple secrets for winning cases, at a HUGE discount, nearly 65% OFF the regular investment.  It’s completely downloadable, so you’ll be able to start putting the tips to work immediately.

To sweeten the deal, you’re also going to get three hours of live CLE and training programs that I’ve presented in the last year:

This digital version won’t be around for long.  As soon as we re-stock our inventory with the physical items, the digital download version will be discontinued, and the price will be back up to $277.  If you want to master your trial skills AND save nearly 65% off the regular investment, you need to go now:

Click Here for Advanced Trial Advocacy Techniques

Earlier this week I was teaching a trial advocacy program in the middle of horse country, and that’s where I met Buddy.

Buddy is a horse.  More specifically, he’s a Clydesdale, and he lives on a large paddock behind the Ocala Hilton hotel where I was staying.  I went outside to pet him and was amazed at how big he was.  I’ve been around horses before (remind me to tell you about the cattle drive in Montana that I did with my brother a few years ago), but Clydesdale horses always amaze me.   They’re magnificent animals, and they’re absolutely HUGE.

I was curious how big he was, so I went inside the hotel to ask.  The lady at the front desk told me, “Oh, he’s pretty big — about 16 hands or so.”  I smiled and told her “thank you,” but there was one slight problem: I had absolutely no idea what she meant.  I wanted to say, “16 hands?!?  What the heck are you talking about?” Instead, I decided I didn’t want to look dumb, so I simply said, “Thank you,” and left the building.

As you’d probably expect, people who work with horses have their own vocabulary.  In horsing communities, a “hand” is the accepted unit of measurement for determining the size of a horse.  The story behind it is that a king wanted to measure his favorite horse, but since he didn’t have a measuring device, he used the only thing he knew would be consistent: the palm of his hand.  Since then, the “hand” has become the accepted unit of measurement for equines.  To determine the horse’s height, you measure from the ground to the top of the withers (the last hair of the mane on most equines), with “HH” after the numbers standing for the number of “Hands High.” 

I learned an important lesson from that exchange. 

Regardless of whether your witnesses are horsemen, doctors, police officers, etc., they’re going to have their own language.  As the trial lawyer, you’ll invest the effort to learn their language so you can communicate with your witness.  Before long, you’ll become so fluent that you won’t even notice when a few foreign terms casually creep into their testimony.

Here’s the problem:  Your jurors don’t speak that foreign language, and they’re not going to understand what’s being said.  Like me, they’ll probably be afraid of looking dumb, so they won’t speak up and say, “Excuse me, I have no idea what you’re talking about.”   Instead, they’ll quietly sit in the jury box, pretending to understand, and completely miss the most important evidence in your case.

When these foreign terms sneak into a witness’s testimony, you need to ask the witness, “Could you please tell us what [FOREIGN TERM] means?”  Your job is to ensure that your jurors understand the courtroom testimony.  Train yourself to listen with a layman’s ear, and these foreign terms will leap out at you.   Translate them for your jurors, and you’ll never again have to worry about them missing an important piece of evidence because they didn’t speak the witness’s language.

[By the way, a “hand” is 4 inches high, so Buddy was about 64 inches /162.5 cm tall at the shoulders.  That's BIG!]

Almost every lawyer I know salivates at the prospect of impeaching a witness like that.  But before you start calling the witness a “liar,” let me share with you a lesson I learned from a Jedi Knight.

Just in case you’re one of the four people on the planet who’s never seen the Star Wars trilogy, let me give you a little background.  Our story starts “a long time ago, in a galaxy far, far away…”  In the first movie, Luke Skywalker is asking the Jedi Knight, Obi Wan Kenobi, about his father:

Luke Skywalker: How did my father die?

Obi Wan Kenobi: A young Jedi named Darth Vader, who was a pupil of mine, was seduced by the Dark Side of the Force.  He betrayed and murdered your father.

A clear and simple explanation, right?  But in the next movie, The Empire Strikes Back, Luke confronts Darth Vader.  During their light saber battle, they have this exchange:

Darth Vader: “Obi Wan never told you what happened to your father.”

Luke Skywalker: “He told me enough.  He told me you killed him.”

Darth Vader: “No — I am your father.”

So which is it?  Did Vader kill Luke’s father?  Or is he Luke’s father?  (I can’t believe you don’t know this stuff already.  It’s a heck of a lot more important than what happened to Mrs. Palsgraff!)  Luckily, our story doesn’t end there, and in the third movie, Return of the Jedi, Luke gets the answer to his question.  He returns to finish his Jedi training and asks Yoda if Vader is his father.  After Yoda confirms that Darth Vader is Luke’s father, Luke has this conversation with Obi Wan:

Luke Skywalker: Why didn’t you tell me?  You told me Vader betrayed and murdered my father.

Obi Wan Kenobi: Your father was seduced by the Dark Side of the Force.  He ceased to be Anakin Skywalker, and became Darth Vader.  When that happened, the good man who was your father was destroyed.  So what I told you was true.  From a certain point of view.

Luke Skywalker: A certain point of view?

Obi Wan Kenobi: Luke, you’re going to find that many of the truths we cling to depend greatly on our own point of view.

And that statement brings us to a valuable cross-examination lesson.  Just because the witness says something that you can prove is false, does that mean the witness is lying?  Maybe, maybe not.  But even if he is, before you bring out the heavy ammunition, ask yourself if you really want to drop the “L” word on your jury.

You don’t necessarily need the jurors to think the witness is lying, do you?  All you really need is for them to disregard his testimony, right?  It doesn’t matter why they disregard it, just so long as they do.  So why take on an extra burden for yourself?  And that’s why Obi Wan’s statement is so valuable.  If you can come up with a comfortable way for them to disbelieve his testimony, that’s all you need to do. 

What Obi Wan is saying is that you don’t need to prove that the witness lied to the jurors, all you need to do is show that the witness was mistaken.  If you can show the jurors that this witness’s “truth” is based on his own point of view, and his point of view differs from what really happened, the jurors can disregard the witness’s testimony, without being put in the uncomfortable position of having to call him a “liar.”

You probably already know that most jurors don’t like to think that witnesses are lying to them.  Most jurors have a difficult time believing that a witness can take the stand, raise his right hand, promise to “tell the truth, the whole truth, and nothing but the truth,” but then look the jurors square in the eye and lie to them.

Because we’re lawyers, we don’t have any problems believing that someone will take the stand and lie to us.  But jurors don’t think like that.  Maybe they’re more optimistic than we are, or maybe they don’t get lied to as often as we do, but most jurors I’ve met prefer to think that any witness who takes the stand is going to be honest with them.  (Yes, they even expect 10x convicted felons to tell the truth.)  If you attack a witness’s testimony by calling him a liar, you’re going to need to prove that he lied.  If you can’t prove that he lied, you face an uphill battle trying to get the jury to disbelieve his testimony.

Before you plan your next cross-examination, ask yourself if you need to prove the witness is lying.  Is there an easier way to discredit his testimony?  Can you show the jury that his point of view conflicts with reality?  If so, consider making things easier for your jurors.  They may still decide to call him a “liar” in the deliberation room, but they won’t need to do it.  Just show them that they can disregard the witness’s testimony without calling him a liar, and you’ll make it easier for them to return the verdict you deserve.

To help him get ready for trial, Bill’s trial partner encouraged him to look through a book on evidentiary predicates, write out his predicate questions word-for-word, and invest a few hours anticipating any objections that might arise.  Bill followed his advice, but he still felt a little nervous.

When it came time for trial, however, Bill was ready.  Each of his carefully worded questions were written in block print on a yellow legal pad that he held as if it were a winning lottery ticket.  He wiped away a light sheen of perspiration from his forehead, and started to ask questions.  As he questioned the witness, his eyes never left the legal pad, for fear of omitting a single word from his questions.  He visibly flinched each time his opponent moved her chair, fearing that she was rising to object.  Finally, however, he read the final question from his legal pad.  “At this time, we would ask that Exhibit A for Identification be introduced into evidence as Exhibit #1.”

The judge turned to his opponent and asked, “Any objections, counselor?”

His opponent had no objections, so the judge ruled, “Exhibit A for Identification is hereby moved into evidence as Exhibit #1.”

Bill exhaled a sigh of relief.  “No more questions, your honor,” he said, and sat down at his table.  He was visibly relieved, but you could also see the hint of a proud smile starting to bloom on his face.  He’d done it!  Despite all of his concerns, he’d actually gotten his first piece of evidence admitted.  There was only one problem…

He never showed the exhibit to the jury!

He had focused, almost obsessively, on getting his evidence admitted.  As a result, he’d lost track of the big picture.  Although he’d managed to ask the proper predicate questions, anticipate objections, and get his exhibit introduced into evidence, Bill had forgotten why he was asking those predicate questions.  We don’t ask questions because we want the jurors to hear the evidentiary foundations.  We don’t ask questions because we want to avoid objections.  And we don’t ask questions to get our evidence admitted into evidence.

The reason we ask predicate questions is so the jury can see our exhibits.

The next time you’re in trial, remember why you’re asking your questions.  Focus on the real reason why you’re asking those predicate questions.  Do you want the jurors to see an exhibit?  Do you want them to believe that a document is authentic?  Do you want them to believe your witness is qualified to render an expert opinion?  Keep in mind what you’re trying to accomplish, and you won’t lose sight of the forest for the trees.